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The division of property after divorce is not an easy matter. For example, a car cannot be divided mechanically during a divorce. But this does not mean that in this matter it is necessary to deviate from the principle of equality of shares established in the Family Code. It’s just that the procedure itself has some nuances, which we will consider in this article. During the trial, the Civil Code of the Russian Federation, the Civil Procedure Code of the Russian Federation and the Tax Code of the Russian Federation will be involved, as well as, possibly, a number of federal laws and regulations regulating the activities of banks.
When the car remains joint property
Family law determines that any property acquired during marriage using funds from the family budget is considered the common property of the husband and wife (Article 34 of the RF IC). To establish equality of shares, it does not matter which spouse invested more in the acquisition of things. It is even possible that one of them did not work at all, but was engaged in housekeeping and raising children. The principle of equality is established for both movable property and real estate.
After the dissolution of the marriage, the spouses retain equal rights of ownership of the joint property. They have the right to use it jointly or to make a division. Both options can be implemented with the help of a judicial decision or on the basis of a settlement agreement (Article 38 of the RF IC).
The most difficult issue is to resolve the issue of dividing some movable property, because it is simply physically impossible to do this. This applies primarily to the vehicle.
Legal aspects
According to Art. 35 of the RF IC, ownership, use and disposal of family property is carried out by mutual consent of the spouses. Norms Art. 256 of the Civil Code of the Russian Federation determines that all property acquired during marriage is common, with the exception of personal belongings (clothing, shoes, personal items), goods purchased to meet the needs of children, intellectual property (patents, copyrights, licenses).
Spouses must dispose of property acquired during marriage by mutual consent. It can be expressed orally or in writing.
Verbal approval of the transaction
Verbal consent is required for normal household transactions, such as the sale of used household items. In this case, the legislator proceeds from the principle of good faith of the spouses, believing that before the transaction they reached a mutual agreement on the price of the item, the method of its sale and the subsequent use of the proceeds.
The opposite can only be proven in court, and you will have to convince the judge that the defendant knew about the plaintiff’s disagreement with the alienation of property and deliberately ignored his opinion. Judicial practice on this issue is sparse: claims submitted to the court are satisfied only if the applicant’s words are confirmed by written testimony of witnesses that the wife was against the sale of property.
Written agreement
Recording of agreements reached on paper is required in the case of transactions subject to state registration. For them, a procedure is provided for notarization of the consent of the second spouse to the alienation of common property. This applies to real estate - houses, apartments, land plots, garages, shares in private companies, vehicles, etc.
If notarized confirmation of the spouse’s consent to the transaction is not received, but the property was nevertheless alienated, the “other half” has the right to demand termination of the contract in court. The statute of limitations for such situations is 1 year.
When the car is not divided
Partitioning a car in some situations provided by law is impossible. Actually, this rule applies to any property. If the car was inherited or was given to one of the couple, then the second spouse does not have rights to the car. Even if the transaction occurred during the existence of the family. True, if money from the general family budget was invested in the repair or improvement of the vehicle, then in the event of division of property the object will be recognized as joint property.
If one of the spouses bought the car before marriage, then it will also remain personal property.
Let's sum it up
There are 2 options for dividing a car purchased during marriage: negotiate with your spouse yourself or seek help from the court. In the latter case, the interested party will need to draw up a claim, attach all the necessary documents, and prove their need for transport.
Sometimes the situation is complicated by the fact that the car is registered only in the name of one spouse, it is taken on credit, or there are two cars in the family that differ significantly in cost. The court considers each case individually, studying all submitted documents, as well as the opinions of appraisers.
If the car was received by inheritance/gift or acquired before the registration of the marital union, then after the divorce it remains with its legal owner.
Division through court
In most cases, the division of jointly acquired property is carried out with the help of the court. Each spouse has the right to draw up and submit a statement of claim. Considering that the car is not divided into two parts, the judge can make the following decision:
- the vehicle becomes the property of one of the spouses, and the other is paid monetary compensation equal to half the cost of the car;
- sale of a car with subsequent division of the proceeds between spouses;
- the car remains in common use of the spouses, who agree on the rules and procedure for its use.
The issue of dividing a car during a divorce in 2021 may be complicated by the choice of the person to whom it will be given ownership. If only the husband has a driver’s license, then he can count on getting a car. But when each spouse has rights, the judge will assess the extent to which ownership of the car is necessary. For example, if one of the spouses receives the main income by using the car as a taxi, then the car will be given to him. They will also take into account the presence of minor children who need to be transported to educational institutions, as well as the distance of their place of residence from work, etc.
How not to share a car with your second spouse during a divorce through the court.
The lawsuit must be filed in the place of residence of the defendant. If this is not possible, then at the location of the disputed property. Such cases are within the competence of city and district courts of general jurisdiction.
Vehicle valuation
Before going to court, it is advisable for spouses to determine the value of the vehicle at the time of the proposed division. If the car was purchased shortly before the trial, was not involved in an accident, and both spouses agree on the cost, then it will be the starting point for division. For example, the price of a car is set at 850 thousand rubles. If she remains the property of the husband, then he will be obliged to pay his wife monetary compensation in the amount of 425 thousand rubles.
If the vehicle was purchased a long time ago, then you will need to invite an independent expert to evaluate it. It is necessary that he is an active member of the SRO of appraisers and has insurance.
First of all, the specialist will request the title documents for the car, the agreement under which the car became property. Then he will carry out a visual inspection and evaluate the technical characteristics to determine the average cost of similar cars on the market. At the end of the examination, the specialist draws up a report in which he indicates the cost and calculation procedure.
What consequences await a spouse in the event of an illegal sale?
If the plaintiff (spouse) proves his case during the trial, the spouse can expect:
- Return half of the money to the spouse after the sale of the vehicle. The calculation will take place on the basis of the concluded contract for the sale of the car. The spouse has every reason to demand half of the funds from the transaction amount, which will be indicated in the official document
- The transaction is declared invalid due to violations of the current legislative framework, therefore it is cancelled. The buyer returns the vehicle to the owner, who then decide how they will dispose of it. In this case, the buyer will act as a third party, since he will be obliged, together with the husband, to pay compensation to the ex-wife.
It is important to take into account that if the spouse proves the fact that he invested most of the money to purchase a car, this will not help to appeal the court decision in accordance with Article 35 of the Criminal Code.
Voluntary car sharing
A husband and wife who have a common opinion regarding the ownership rights to property can delimit them without going to the courts. To do this, they will need to draw up a settlement agreement on the division of property. This document is written in any form. If it concerns a car, then you should describe in detail the model, color, engine number, etc.
An agreement between spouses can be drawn up both during marriage and at any time after divorce. It requires mandatory notarization.
On our website you will find a sample agreement on the division of a car between spouses and download it for review.
Agreement on payment of monetary compensation
In the property division agreement, you can specify not only the spouse who will receive the car during a divorce in 2021, but also determine the amount of compensation. The parties themselves establish the amount and method of its calculation. Perhaps this is some fixed figure or a certain percentage of the cost. The main thing when drawing up an agreement is that its terms do not violate current legislation.
Is it possible to draw up an agreement to determine shares?
Some lawyers suggest entering into an agreement to determine shares as a way to avoid dividing the car. In this case, each spouse is assigned a part of the common property.
This option is impractical, since the car is an indivisible thing. In the event of a divorce, one of the spouses will have to buy out the share of the other in order to receive the property as their common property. He may not agree to this; the issue will have to be resolved in court.
If spouses decide to sell their shares to raise money, there may be a dispute over the value and the buyer. Both owners must be indicated in the purchase and sale agreement.
Instead of an agreement on determining shares, it is best to draw up an agreement on the division of property. It should state that the car goes to one of the spouses, and the second receives monetary compensation for his share or other property.
If the car was purchased on credit
It is problematic to divide a car on credit until the debt is repaid. A car pledged to the bank cannot be used in transactions without the permission of the credit institution. Therefore, when carrying out a division, you must first obtain permission from the bank.
Usually, the basic procedure in such situations is fixed in the loan agreement, and you will have to follow it. In such cases, several options are used:
- the spouses then continue to repay the loan together, and upon completion, they divide the car;
- The car is put up for auction. The debt to the bank is repaid from the proceeds, and the remainder is divided between the spouses;
- The credit account is divided into two, and then each spouse pays off their part of the debt independently. At the end of the payments, they again divide the car among themselves;
- The loan is then issued to one of the spouses, who pays off the balance of the debt himself and subsequently becomes the sole owner of the car. And the second spouse is paid monetary compensation.
When the debt for the vehicle is repaid, the ownership rights to it are demarcated according to the standard presented schemes.
Illegal ways of leaving property in the property of a husband or wife
Husband and wife do not always act honestly towards each other. After the divorce, they use various illegal schemes to keep the car and not pay compensation to the second spouse for his share.
Drawing up a gift agreement in the name of a relative
Often, a car is transferred through a gift to a close relative in order to exclude it from joint property that is subject to division.
On the one hand, transactions related to the gift of a vehicle do not require the consent of the second spouse. They do not require registration with Rosreestr, so such consent is assumed if the husband or wife has not challenged the agreement.
At the same time, if the husband or wife is against the gift agreement and did not give consent to such a transaction, it can be challenged in court. If it is proven that the other party knew about the spouse’s objections to the transaction, it will be declared invalid. The spouses will have to make a division of property.
Imaginary sale of a car without the consent of the second spouse
A similar situation arises when selling a car. The husband or wife draws up an imaginary purchase and sale agreement for one of the relatives. The car is re-registered in the name of parents, brothers or sisters. In this case, the funds for the purchase are not actually transferred to the seller.
An imaginary transaction can be challenged in court. You will need to prove two points:
- the contract was concluded without the consent of the husband or wife and the second spouse knew about it;
- no funds were transferred for the sold car.
According to the court decision, the deal will be annulled. The car must be returned to joint ownership, after which the division takes place.
If there are two cars in the family
It happens that both spouses use cars. Each to their own, but they are common property. The division of such cars through the court will be accompanied by a mandatory expert assessment of the value, unless each spouse agrees to simply take the car they drive and not claim the second one.
Should the car go to the parent with whom the children stay?
Not really
This option is most often used if the car has a significant initial cost difference. In this case, after determining the price, each party can keep their car. But the owner of the more expensive one will be obliged to pay monetary compensation in the amount of the difference between the cost (exactly half).
Vehicle valuation
From the moment you buy a car until the moment it is divided in court, months or years can pass. During this time, the cost of the vehicle decreases. In addition, the car could have been purchased not from a car dealership, but from the previous owner. Since the real price of a property is rarely indicated in official documents, assessing its value becomes very difficult. Without having an idea of the value of the car, it is impossible to divide it.
Therefore, in a judicial process, an examination must be appointed - it is carried out by professional appraisers.
How to buy a car so as not to divide during a divorce
If one of the spouses thinks in advance about how to leave the car in their property in the event of a divorce, then you can resort to a number of maneuvers. Firstly, it is permissible to draw up a purchase and sale agreement in the name of one of the parents, and then, with the help of a deed of gift, become the rightful owner.
You can also issue a deed of gift not for a car, but for the money that is then used to purchase the car. In this case, the car will also be regarded as the personal property of one of the spouses.
How to have a contract certified by a notary?
Without notarization, a marriage contract is invalid, so spouses must visit a notary office.
Along with the marriage contract in triplicate, the notary should be provided with a package of documentation:
- identification of both parties;
- Marriage certificate;
- documents for the car (purchase agreement, vehicle passport).
You also need to pay a state fee of 500 rubles. (clause 10 of part 1 of article 333.24 of the Tax Code of the Russian Federation).
The notary will check the contract for compliance with the law and explain the consequences of its conclusion. If the document requires corrections, they can be made on the spot.
Then a certification inscription is affixed to the contract. Information about the transaction is entered into a special register of notarial actions. One copy is kept in the notary's office. Spouses receive one copy each.
Arbitrage practice
As an analysis of judicial practice shows, dividing a car may be impossible due to its alienation.
Therefore, if the subject of a property dispute is a car, the plaintiff first needs to petition for the seizure of the object in order to prevent its sale. There are many examples of litigation that ended in nothing for the plaintiff after the sale of the car. The division of a car during a divorce in 2021 can be carried out through a personal agreement between the spouses or through the court. As a rule, in such a situation, one of the parties receives ownership of the car, and the other is paid monetary compensation in the amount of half the cost of the vehicle.
Legislative norms
In accordance with current laws, vehicles are classified as indivisible property.
It is impossible to divide a car into two parts and therefore, often one of the parties gets the vehicle, and the other party to the legal dispute receives money. It should be noted that when the question arises of how to keep a car during a divorce, every person should know that there is no difference in who the vehicle is registered to. If the car was purchased after the marriage, then it belongs to the property acquired through the efforts of both spouses. As a result, each spouse can claim the vehicle. However, there are certain nuances here. Receiving a car can be free or paid. If the car was donated by parents or any other people, then it is the personal property of the person in whose name the vehicle is registered. The same applies to situations where the transport was received due to the receipt of an inheritance.
There are often cases when people wonder how to keep a car during a divorce if it was purchased with personal funds that were earned before marriage. In this case, there are certain nuances. The Supreme Court of the Russian Federation provided an explanation for such situations. Thus, property that was purchased during marriage, but with funds earned by one of the spouses before marriage, is not jointly acquired. Thus, a person needs to prove the fact of receiving funds.
Partial/full payment agreement
If neither spouse needs a vehicle, then the simplest option would be to sell the car to third parties, with further division of the proceeds equally.
However, what if one of the spouses is so accustomed to this car that he is not ready to part with it under any circumstances?
In this case, the only legal option would be to draw up an agreement under which the car will remain with one of the spouses in exchange for compensation for the transferred share of the second owner.
Such an agreement can be drawn up:
- before submitting a dispute about the division of property to court (notarized);
- during the trial by drawing up and agreeing on a settlement agreement (entails approval of the agreement by the court and termination of the proceedings).
When drawing up such a document, you need to take into account the following nuances:
- payment of compensation should be based on the market value of the car, which the parties can determine independently or with the help of an independent appraiser if there are disagreements in determining the price of the vehicle;
- if a settlement agreement is concluded at the stage of the trial, it must be approved by the court;
- under such an agreement, even a vehicle that is personally owned by one of the partners can be transferred (in this case, compensation for the full cost of the car will be paid).
This agreement will allow the interests of both spouses to be legally respected, unnecessary legal costs will be avoided, and the vehicle will not have to be sold to third parties.
